The New Hampshire Supreme Court (the “Court”) recently upheld a Housing Authority Board (“HAB”) decision approving a variance request that had been denied by the Town of Derry’s Zoning Board of Adjustment (“ZBA”). In doing so, the Court reiterated the appropriate standards that both the ZBA and the HAB should apply in considering variance requests.
In late 2021, the owners of a property in a low-medium density residential area sought a variance from a zoning ordinance that required 150 feet of roadway frontage to construct a home. The lot had only 108 feet of roadway frontage and was originally intended to provide community access to well water, rather than the single-family home the owners sought to build. A prior request for a variance had been raised and rejected in 2003. Neighboring property owners raised concerns about privacy and water runoff at public hearings.
The ZBA voted 2-3 against the motion to approve the variance. Of the three prevailing votes, two ZBA members based their denial on grounds that a variance was contrary to the spirit of the zoning ordinance, while the third member cited decreased property values. However, the record did not reflect that the ZBA considered three other factors listed in RSA 674:33, I(a)(2) for evaluating variance requests. After the ZBA denied a motion for rehearing, the property owners appealed to the HAB.
The HAB reversed the ZBA’s decision, finding that it was unreasonable based upon the record as it related to the two factors articulated in denying the variance. The HAB went on to consider the three other factors under RSA 674:33, I(a)(2) and concluded the variance should be granted. In doing so, the HAB considered the posture of the ZBA’s vote, noting that it showed two members had determined the five prongs of the statutory variance test were satisfied even though three of the factors were not cited in the ZBA decision.
The Town of Derry sought a rehearing, arguing that the HAB had erred in substituting its own judgment for that of the ZBA on the effect on property values and that the HAB had wrongly analyzed the statute by emphasizing the votes in favor, versus the votes against, the variance. In denying the rehearing, the HAB asserted that it had considered the vote posture only to assess whether all the statutory elements had been evaluated.
The Court noted the standards of review applicable to the HAB’s consideration of the zoning board’s decision, as well as its own review of the HAB’s decision. The HAB was required to uphold the zoning board decision unless there was an error of law or the HAB was persuaded the decision was unreasonable. The HAB was required to treat factual findings by the ZBA as prima facie, lawful and reasonable, just as the Court was to treat factual findings by the HAB. The HAB was charged with determining whether the recorded evidence could reasonably support the ZBA’s findings, just as the Court was to determine whether the HAB’s findings had competent recorded evidence for support. Additionally, the Court was to defer to the HAB’s order unless a clear preponderance of the evidence showed it was unjust or unreasonable.
The Court rejected the Town’s argument that the HAB had applied the wrong standard of review, concluding that the HAB had focused on whether the ZBA’s findings were reasonable based upon the evidence in the record. The court noted that zoning boards are required to consider variance requests considering five statutory factors. That assessment must rely on objective facts, rather than conclusory opinions based on vague concerns. The Court concluded that the HAB properly found the record did not support the ZBA’s findings as to the diminishing property value factor. While the record showed that neighboring property owners had raised concerns, those were not linked to diminished property values. To the extent a ZBA member had raised a comment on property values, that reflected a vague concern that did not constitute a proper basis in the consideration of the variance request. The Court further found that the HAB could properly consider the land surveyor’s report for the property owners that the development would actually increase property values. That the HAB considered that report instead of concerns from adjacent property owners and the ZBA member’s comment, did not mean that the HAB improperly shifted the burden of proof onto the ZBA, contrary to the Town’s argument.
Further, the Court found the Town had not preserved an objection that the HAB exceeded its authority by conducting a de novo review of the three statutory variance factors not articulated in the ZBA’s decision. Finally, the Court concluded the Town failed to show reversible error by the HAB in considering the posture of the ZBA vote because the HAB had stated the posture was not part of its analysis and the Town did not argue the findings were erroneous on other grounds. Accordingly, the Court affirmed the HAB’s reversal of the ZBA’s decision denying the variance.
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